State v. Blanchard, 99-K-3439.

• Decision Date: 18 January 2001
• Docket Number: No. 99-K-3439.,99-K-3439.
• Parties: STATE of Louisiana v. Dean P. BLANCHARD.
• Court: Louisiana Supreme Court

776 So.2d 1165

STATE of Louisiana v. Dean P. BLANCHARD.

No. 99-K-3439.

Supreme Court of Louisiana.

January 18, 2001.

Arthur A. Lemann, III, Jefferson, LA, Counsel for Applicant.

Richard Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gretna, LA, Thomas J. Butler, Quentin P. Kelly, Gretna, LA, Vincent Paciera, Jr., New Orleans, LA, Counsel for Respondent.

VICTORY, J.

We granted this writ to determine whether La. R.S. 14:95(E), which prohibits a person from possessing a firearm while possessing a controlled dangerous substance, can be applied to criminalize the constructive possession of a firearm by one who also possesses marijuana. After reviewing the record and the applicable law, we find that "constructive possession" is sufficient to constitute "possession" under the statute; however, if constructive possession of the firearm is proven, the State must also show a nexus between the firearm and the drugs in order to prove a violation under the statute. Because the trial court did not properly instruct the jury on this issue, we remand this case to the trial court for a new trial.

FACTS AND PROCEDURAL HISTORY

On February 24, 1996, officers from the Jefferson Parish Sheriff's Office and the Grand Isle Police Department went to defendant Dean Blanchard's home. When defendant opened the door and was told that the officers were there to execute a search warrant, the defendant told the officers that he had a small amount of marijuana in the house, and, when asked if he had any weapons, replied that he had an Uzi pistol, which the officers located in a kitchen cabinet. The officers also found a bag with a small amount of marijuana under a sofa cushion and two marijuana cigarettes in an ashtray.¹

Defendant was charged in Count 1 with possession with intent to distribute over 28 ounces of cocaine, a violation of La. R.S. 40:967(F), and in Count 2 with possession of a firearm while in possession of a controlled dangerous substance, to wit, marijuana, a violation of La. R.S. 14:95(E). At trial, the jury returned a verdict of not guilty as to Count 1 and deadlocked as to Count 2. At a second trial on the charge of possession of a firearm while in possession of marijuana, defendant was found guilty as charged and sentenced to seven years at hard labor.² The court of appeal affirmed his conviction and sentence. State v. Blanchard, 99-599 (La.App. 5 Cir. 11/10/99), 749 So.2d 19. We granted defendant's writ application to determine the applicable scope of La .R.S. 14:95(E). State v. Blanchard, 99-3439 (La.6/30/00), 765 So.2d 1054.

DISCUSSION

La. R.S. 14:95(E) provides:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence. (Emphasis added).

Defendant claims that La. R.S. 14:95(E) is unconstitutional in its application because it provides an enhanced penalty for the constructive possession of a firearm and drugs without a showing of connexity between the weapon possession and the drug offense. Thus, he claims that the statute is overbroad in violation of his right to bear arms and violates equal protection by arbitrarily including a misdemeanor drug offender in the same class with felony drug offenders without serving a legitimate state purpose.³

The court of appeal addressed only defendant's equal protection argument and found that the statute was constitutional after examining the right to bear arms and the legislative intent behind the statute. The court of appeal correctly set out the parameters of the equal protection analysis as follows:

The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety. State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324; State v. Hamlin, 497 So.2d 1369 (La.1986); State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62. However, the Fourteenth Amendment to the United States Constitution, and Article I, § 3 of the Louisiana Constitution provide that no person shall be denied the equal protection of the laws. Equal protection requires that there be a rational basis for laws which discriminate between similarly situated groups of persons who are not members of a "suspect class." Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 704, 38 L.Ed.2d 618 (1974); State v. Sandifer, 95-2226 at p. 10, 679 So.2d at 1333. A rational basis is a rational relationship between a legitimate state interest and the provision enacted. Marshall, 414 U.S. at 422, 94 S.Ct. at 704.

State v. Blanchard, supra at p. 24. The court then articulated what we believe is the correct interpretation of the legislative intent of La. R.S. 14:95(E):

The aim of the legislature in enacting [La. R.S. 14:95E] was to criminalize possession and/or use of a dangerous weapon, including a firearm, in order to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade. This statute was enacted not solely for the protection of police officers ... but also for the protection of the general public.

Id. at 25 (citing State v. Williams, supra, 98-1006 at p. 3, 735 So.2d at 69). However, without addressing the narrowing construction argued by defendant, the court of appeal then approved of a broad interpretation of the statute and held that the statute, "even as applied to one in possession of a misdemeanor amount of marijuana, serves the legitimate state purpose of protecting law enforcement officers and the public from those who might commit a violent act with a weapon under the influence of drugs." Id. This reasoning is flawed as there is no requirement in the statute that the offender be "under the influence of drugs" in order to be violating the statute. Thus, we will determine the proper interpretation of the statute⁴ and then determine whether, when properly interpreted, the statute is constitutional as applied to this defendant.

The heart of the issue is whether the legislature intended this statute to prohibit the constructive possession⁵ of a firearm by the term "possesses ... any firearm," while possessing drugs, and, if so, whether there needs to be any connection between the drugs and the weapon.⁶

This Court has previously considered the meaning of the word "possess" in La. R.S. 14:95(E). In State v. Sandifer, supra, defendant claimed, among other things, that La. R.S. 14:95(E) was vague, overbroad, and violated equal protection rights.⁷ In finding that the statute was not vague as to defendant's conduct, i.e., sitting in his car with two firearms under his immediate control and a controlled dangerous substance located next to him, we held that the word "possess" "need not be defined statutorily because it has a `well known and commonly understood meaning.'" 679 So.2d at 1331 (citing State v. Richard, 245 La. 465, 158 So.2d 828, 831 (1963)). We held that in this statute, as in the statutes dealing with possession of drugs and possession of guns, the term "possess" "is broad enough to encompass both `actual' and `constructive' possession." Id. (citing State v. Mose, 412 So.2d 584, 586 (La.1982) ("constructive" possession of guns found in bedroom gun rack satisfies "possession" element of La. R.S. 14:95.1); State v. Bell, 566 So.2d 959, 960 (La.1990) ("constructive" possession of drugs by defendant seated in car with drugs on the console satisfies "possession" element of La. R.S. 40:967)).⁸ Thus, we have already held that "possession" under La. R.S. 14:95(E), taken in its usual sense, includes constructive possession and we reaffirm that holding today. Further, this holding is reinforced by the fact that to interpret "possess" to mean only "actual possession" would lead to absurd consequences, as it would fail to punish a drug dealer found with a load of guns and drugs in the trunk of his car because the guns would not be on his person and they might not be found to be within his immediate control,⁹ depending on his location.

However, in cases where the defendant is not in actual possession of the firearm and the firearm is not within his immediate control, to interpret this statute to prohibit the constructive possession of a firearm simultaneously with the possession of a controlled dangerous substance, without some connection between the firearm and the drugs, could likewise lead to absurd consequences. For example, a person could be found guilty of violating this statute when he is found with drugs at his home and a gun at his fishing camp 100 miles away. Defendant argues that such an interpretation would impinge his constitutional right to bear arms recognized in Article I, § 11 of the Louisiana Constitution.

Several other states with similarly broad statutes,¹⁰ which prohibit mere "possession" of a firearm simultaneously with other criminal conduct, have required a nexus between the drug possession and the gun possession.¹¹ In State v. Peete, 185 Wis.2d 4, 517 N.W.2d 149 (1994), a search of the apartment of the defendant's girlfriend, where defendant slept 2-3 nights per week, revealed drugs in a dresser drawer, and a gun between the mattress and 3 guns in a cereal box in the kitchen. The...